CHAPTER 4-10 WATER USE AND PERMITTING
4-10-1 Declaration of Rights.
(a) In order to promote the general welfare of the Colville Confederated Tribes and develop, manage, and preserve the waters and other resources of the Colville Indian Reservation; and in order to provide for the exercise by the United States of its duties to preserve and protect in perpetuity all waters reserved for the Colville Confederated Tribes and the Colville Indian Reservation, to provide for the exercise of the inherent sovereign power of self-government by the Colville Confederated Tribes, and to further the present and future preservation and development of the resources of the Colville Confederated Tribes;
(b) The Colville Confederated Tribes hereby assert their prior, exclusive and supreme rights in, ownership of, and jurisdiction over the waters of the Colville Indian Reservation, defined herein, for all purposes.
4-10-2 Nature of Ownership
(a) The Colville Confederated Tribes are the owners of the full equitable title to the rights to the use of all of the waters of the Colville Indian Reservation, as defined herein, and that title resides undiminished in the Colville Confederated Tribes. The United States hold only the naked legal title to those waters solely as trustee for the Colville Confederated Tribes.
(b) All rights to the use of the waters of the Colville Indian Reservation, as defined herein, are held by the Colville Confederated Tribes in perpetuity, for the use and benefit of the Colville Confederated Tribes and the lands and other resources of the Colville Indian Reservation. No right or privilege of any kind, from whatever sources, shall be recognized or granted unless the same shall be subject to the overriding, prior and supreme right and interest of the Colville Confederated Tribes, and the policy and provisions contained in this Chapter, amendments hereto, and administrative regulations and determination hereunder. No agent of the Colville Confederated Tribes, the Colville Business Council, or the United States shall take any action or grant to recognize any right affecting the water resources of the Colville Indian Reservation which in any way decreases or threatens to decrease the prior and supreme rights and interests of the Colville Confederated Tribes.
4-10-3 Application of Chapter.
180 day after the effective date of this Chapter, it shall be unlawful to divert or withdraw or otherwise make any use of, or take any action of whatever kind substantially affecting, the waters of the Colville Indian Reservation unless the applicable provisions of this Chapter and regulations and determinations made hereunder have been complied with. No water rights, from whatever source, shall be recognized, except rights obtained under and subject to this Chapter.
4-10-4 Waters of the Colville Indian Reservation Defined.
The waters of the Colville Indian Reservation are defined as:
(a) All waters located upon or bordering the Colville Indian Reservation, whether flowing or stationary, whether above or below the surface of the ground, and whether diffused or contained within a defined water course or water body of any kind;
(b) All waters reserved at any time to the Colville Indian Reservation by the United States and the Colville Confederated Tribes; and
(c) All water which, in the course of nature or as the result of artificial works, flows into or other wise enhances such waters.
Notice of Enactment and Effect
4-10-30 Notice Required.
To insure that all persons and entities affected by this Chapter are given adequate notice of the enactment and effect of this Chapter, the Water Committee created herein shall, within 15 days after the effective date of this Chapter, provide for public notice of its enactment and effect in accordance with the provisions of this Subchapter.
4-10-31 Contents of Notice.
(a) Such public notice shall contain the following statement, prominently displayed and in large, boldface type:
NOTICE! AFTER NO PERSON OR PUBLIC OR PRIVATE ENTITY OF ANY KIND SHALL BE ENTITLED TO MAKE ANY USE OF OR OTHERWISE AFFECT THE WATERS OF THE COLVILLE INDIAN RESERVATION, AS DEFINED IN THE SUBCHAPTER ON GENERAL PROVISIONS OF THE WATER RIGHTS AND PERMITTING CHAPTER UNDER THE COLVILLE LAW AND ORDER CODE, UNLESS SUCH USE IS AUTHORIZED BY A PERMIT AS PROVIDED FOR BY THE WATER RIGHTS AND PERMITTING CHAPTER OF THE COLVILLE LAW AND ORDER CODE. NO OTHER WATER RIGHTS OF ANY KIND, FROM WHATEVER SOURCE, SHALL BE RECOGNIZED. APPLICABLE PORTIONS OF THE WATER USE AND PERMITTING CHAPTER OF THE COLVILLE LAW AND ORDER CODE ARE QUOTED BELOW. THE NECESSARY FORMS FOR PERMIT APPLICATIONS HAVE BEEN INCLUDED WITH THIS NOTICE WHENEVER POSSIBLE. SUCH FORMS MAY ALSO BE PROCURED FROM THE COLVILLE WATER COMMITTEE OR THE COLVILLE CONFEDERATED TRIBES AT THE FOLLOWING ADDRESS OR TELEPHONE NUMBER: COMPLETE COPIES OF THE WATER RIGHTS AND PERMITTING CHAPTER OF THE COLVILLE LAW AND ORDER CODE ARE ALSO AVAILABLE FOR SALE AT THE ABOVE ADDRESS.
(b) In addition to the above-quoted statement, such public notice shall also contain, prominently displayed, the Subchapters of this Chapter declaring the prior and supreme rights of the Colville Confederated Tribes, defining the waters of the Colville Indian Reservation, describing the procedures to be followed in obtaining a permit, and setting forth penalties for use of water without authorization under this Chapter.
(c) In addition, the Colville Business Council and the Water Committee may include in such public notice additional information deemed necessary in order to assure adequate notice of the enactment and legal effect of this Chapter.
4-10-32 Notice - How Given.
The Water Committee shall give notice of the provisions of this Chapter as follows:
(a) It shall cause the notice provided above to be placed in at least one regularly published newspaper in both Ferry and Okanogan Counties and in at least one newspaper having a circulation of more than 50,000 copies for each weekday in King and Spokane Counties, at least once every other week over 12-week period.
(b) It shall cause the notice provided above to be placed in a prominent and conspicuous location in the County Courthouse of Okanogan Count and in the County Courthouse in Ferry County, and at the Tribal Office. The Committee may post notice in other locations as it deems necessary.
(c) It shall acquire from the County Treasurers of Okanogan and Ferry Counties the names and addresses of the recipients of any tax statements for real property located on the Reservation and shall mail a written notice to such persons as soon as possible and no more than 30 days after the effective date of this Chapter, together with a statement that it shall be the duty of the recipient of the notice to forward same to the beneficial or other owner of the property. The Committee shall likewise obtain the names and addresses of any owners of beneficial trust interests or other interests known to the Superintendent, Colville Agency, Bureau of Indian Affairs, and mail similar notices to such persons.
(d) The Committee shall, to the extent it is reasonably feasible to do so, cause a written notice to be posted on all tracts of land within the Reservation known to be owned, claimed or occupied by other than the Colville Confederated Tribes.
(e) The Committee may take any other stops and post any other notice it deems necessary to provide notice of the provisions of this Chapter.
(f) Whenever possible, forms for "Description of Use and Application for Permit", as provided in the Subchapter on Applications for Permits of this Chapter, shall be included with notice in order to facilitate compliance with this Chapter.
4-10-60 Water Committee - Creation, Membership, Terms,
As soon as possible after the effective date of this Chapter, the Colville Business Council shall create a working committee to be known as the Water Committee. The Water Committee will be composed of five members of the Colville Business Council nominated in the same manner as members of other committee and approved by a majority of the Council. The various members shall serve for a term which extends their initial appointment and approval to the next election at which a new Business Council is constituted. Whenever any member of the Water Committee is disqualified or otherwise unable to serve with respect to any matter before the Committee, the Chairman shall appoint a temporary member from among the Colville Business Council to serve in his place. Vacancies on the Water Committee shall be filled in the same manner of nomination and approval as is used for initial appointment of the Water Committee
Any member of the Water Committee may be disqualified either on his own action of upon a majority vote of the Colville Business Council whenever he is unable, because of a direct economic interest or because of other conflict of interest, to serve impartially with respect to any matter.
4-10-62 Water Committee - General Powers.
In administrating this Chapter, the Water Committee, may, in addition to other actions:
(a) Enter appropriate orders;
(b) Grant, deny, modify and revoke water use permits;
(c) File or intervene in any lawsuit, with the permission of the Colville Business Council;
(d) Make determinations of rights;
(e) Make determinations of availability and need as provided in the Subchapter on Determination of Availability and Need under this Chapter;
(f) Start proceedings involving penalties;
(g) In cooperation with the land and Forestry Committee, negotiate for and propose to the Colville Business Council the purchase of sale of real or personal property or other interests;
(h) With the permission of the Colville Business Council, enter into administrative agreements, exchange information, and otherwise cooperative with governmental agencies both on and off the Reservation;
(i) Insure adequate levels in streams and lakes for wildlife conservation and other values;
(j) In cooperation with the Planning Committee, determine, existing and foreseeable uses of and needs for water and other related resources;
(k) In cooperation with the Planning Committee, reserve and set aside water for utilization in the future;
(l) Cooperate with other committees of the Colville Business Council;
(m) Take other actions provided for under this Chapter.
In connection with a determination of availability and need as provided on the Subchapter on Determination of Availability and Need under this Chapter or in connection with other actions under this Chapter, the Water Committee may establish within particular areas dependent upon common supplies, reserve supplies which, although they may be subject to existing uses on an interim basis, are set aside for future Tribal and other needs.
Whenever, upon recommendation of the Water Committee, the Colville Business Council determines that water not presently available is necessary for purposes and project benefiting all or a portion of the Reservation and the inhabitants thereof, the Water Committee may, when so directed by the Colville Business Council, assess individual water users a fair share of water, in predetermined units for such purposes.
4-10-65 Designations of Local Management Areas and Subareas.
The Water Committee may, upon the recommendation of the Water Administrator or at the request of any person, isolate and define, within the surface and ground water systems in which individual water uses are to some degree related by reason of common supply, "local management areas and subareas" for specialized administration under this Chapter.
4-10-66 Water Committee - Method of Operation.
In performing its duties under this Chapter, the Water Committee shall be constituted as a working committee of the Colville Business Council subject to the oversight and control of the Colville Business Council.
4-10-100 Water Administrator - Appointment.
As soon as possible after the affective date of this Chapter the Water Committee shall propose to the Colville Business Council employment of a person or persons capable of serving as Water Administrator under this Chapter. Upon approval by the Colville Business Council, the Water Administrator shall be employed at a salary to be fixed by the Colville Business Council.
4-10-101 Water Administrator - Staff.
The Water Administrator may, from time to time, propose to the Colville Business Council the employment of additional persons of their employment shall be set by the Colville Business Council.
4-10-102 Water Administrator - Information Function.
It should be the duty of the Water Administrator and his staff to gather for their own use and for submission to the Water Committee information related to the water administered under this Chapter. To this end the Water Administrator shall:
(a) Collect, organize and catalog existing information and studies available from all sources, both public and private, pertaining to the Waters of the Colville Indian Reservation.
(b) Develop such additional data and studies pertaining to water and water resources as are necessary to accomplish the objectives of this Chapter.
(c) Solicit public comment and obtain expert advice when appropriate.
(d) Investigate water uses and other activities affecting the waters of the Colville Indian Reservation to determine whether they are in compliance with this Chapter and with applicable regulations, orders, determinations, permits, water quality standards, etc. issued under this Chapter.
(e) Investigate water quality whenever appropriate.
4-10-103 Water Administrator - Enforcement.
It shall be the duty of the Water Administrator and his staff to ensure compliance with this Chapter, and with the conditions of all permits, determinations, orders, regulations, plans and other actions taken under this Chapter, as well as the policies and guidelines expressed throughout this Chapter. To this and the Water Administrator and his staff may:
(a) Remove, render inoperative, shut down, close, seal, cap, modify or otherwise control methods of diversion and withdrawal, obstructions to the flow of water, and activities adversely affecting water quality.
(b) Initiate by citation and other means, as provided herein, proceedings involving penalties for violations of this Chapter and the actions taken under this Chapter.
(c) Enter upon land, inspect methods of diversion and withdrawal, inspect other activities affecting water quality and quantity, install and monitor measuring and recording devices when necessary, and elicit testimony and data concerning actions affecting the quality or quantity of the waters administered under this Chapter.
4-10-104 Water Administrator - Advisory Function.
In addition to the duties of the Water Administrator and his staff with respect to information and enforcement, the Water Administrator and his staff may, from time to time, make proposals to the Water Committee concerning the following:
(a) The advisability of establishing local management areas and subareas as provided elsewhere in this Chapter.
(b) The advisability of making determinations of availability and need as provided in the Subchapter on Determination of Availability and Need under this Chapter;
(c) The advisability of taking other actions and adopting other plans and methods in order to optimize available water supplies and minimize pollution and thermal degradation;
(d) The advisability of purchasing and selling any interest including integrate in real or personal property;
(e) The advisability of participating in law suite and other actions;
(f) The advisability of entering into administrative agreements and other cooperative ventures with various agencies outside of the Colville Business Council and Water Committee;
(g) The advisability of amending or otherwise changing various sections of this Chapter or adding new sections;
(h) The advisability of taking any other action which will further other purposes and increase the effectiveness of this Chapter.
Guidelines for Administration
4-10-130 General Policy Provisions.
In taking any action under this Chapter, the Water Committee shall be guided by the following basic policy guidelines:
(a) Whenever particular, actions taken should benefit the Colville Confederated Tribes and their members and further the objective for which the Colville Indian Reservation was created, namely, to provide a permanent home and abiding place for the Confederated Tribes and their members both now and in the future. Alternatives to existing and proposed uses are to be considered those alternatives shall be the option to restrict or prohibit entirely any further use of water for any reason. If there is presented to the Water Committee a conflict between the Colville Confederated Tribes or any of their members with non-Tribal projects or uses, the Water Committee will grant appropriate preference to the Tribes or their members over non-Tribal project or uses.
(b) In taking any action under this Chapter which may impose substantial economic hardship on persons or entities presently using water, or which threatens degradation of other economic, cultural historic, aesthetic, natural and environmental values, the Water Committee, Water Administrator, or their designee, shall in reaching their decisions, carefully consider and give weight to:
(c) The Water Committee, Water Administrator, or their agents, when considering a proposed action, shall balance these adverse effects against the benefits to Tribal and other interests which are advanced as justifying the proposed action consider alternatives to the proposed action which will lessen adverse effects, and, shape any final action so that its adverse effects will be minimized.
(d) Unless otherwise provide, the following uses shall, when conflicting, be given preference in the order in which they are listed:
4-10-131 Guidelines for Make Most Effective Use of Available Resources.
In addition to the policy guidelines contained in the previous section, the Water Committee should take appropriate actions, in its discretion, to:
(a) Insure an adequate supply;
(b) Maintain water levels for diversion and withdrawal systems;
(c) Maintain head and pressure in surface and underground water;
(d) Prevent or reduce obstruction of surface and ground water flow;
(e) Increase efficiency of diversion and withdrawal, increase efficiency in application, increase return flow, prevent waste and maximum use of the available supply;
(f) Create and enhance the efficiency of natural and artificial surface and underground storage;
(g) Insure optimum recharge of aquifers;
(h) Prevent or reduce loss from losing streams and aquifers;
(i) Define and limit interbasin transfers from shifting aquifer boundaries;
(j) Provide for some degree of overdraft from aquifers when short term recharge is not advisable;
(k) Prevent or reduce interference between competing users of water sources, whether above or below ground.
(l) Prevent or reduce pollution or the effects of pollution;
(m) Prevent or reduce thermal degradation or the effects of thermal degradation.
(n) Shape use of available supplies to promote economic, scenic aesthetic, historical, cultural, natural or domestic values;
(o) Provide for long-term development and prevent untimely qualification.
(p) Penalize misuse;
(q) Prevent interference with Tribal administration of water;
(r) Otherwise insure conformity with the provision of this Chapter.
4-10-132 Additional Policy Guidelines.
(a) Rivers and streams of the Reservation should be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values and navigational values. Lakes and ponds should be retained substantially in their natural conditions. Withdrawals of water which would conflict there with should be authorized only in those situations where it is clear that overriding considerations of the public interest will be served.
(b) Multiple-purpose impoundment structures are to be preferred over single-purpose structures. Due regard shall be given to means and methods for protection of fishery resources in the planning for and construction of water impoundment structure and other artificial obstructions.
(c) Individuals, corporations, groups, associations and other entities shall be encouraged to carry out practices of conservation and environmental protection as they relate to the use of the water of the Colville Indian Reservation.
Applications for Permits
4-10-160 Description of Use and Application for Permit - Required.
Within 180 days after the effective date of this Chapter, all persons desiring to continue existing uses or initiate new uses of or take other actions substantially affecting the waters of the Colville Indian Reservation must file a Description of Use and Application for Permit as required by this Subchapter. After such date, it shall be unlawful to make any use or take any other action substantially affecting the waters of the Colville Indian Reservation except as authorized by this Code.
4-10-161 Description of Use and Application for Permit - Content.
Description of Use and Application for Permit shall be on forms provided by the Water Committee and shall include the following information, in addition to any other information deemed necessary by the Water Committee:
(a) The name and mailing address of the claimant;
(b) The name of if available or a description of the source or sources from which water is or will be diverted or withdrawn;
(c) The quantity of water which is or will be used during each month of the year;
(d) A legal description if such is readily available and other description reasonably describing the point or points of diversion or withdrawal;
(e) A description of the method or methods of diversion or withdrawal;
(f) The purpose or purposes for which water is or will be used;
(g) A description of how water will be applied or consumed, including acreage and crop if the water is for irrigation and the kind and number of stock if water is for stock watering.
(h) The best estimate reasonably possible of how much water will be returned to the source or sources, how, when, at what point or points, and with what charges in quality and temperatures;
(i) The estimated date on which the use or uses were commenced or will be commenced;
(j) If a use is an existing use, the history of the use, including the names of any predecessors in title and the dates of their ownership, if known, and including a description of their uses of water;
(k) If any pre-existing right is claimed, a description of any documents of programs upon which it is based, any statute or statutes or legal doctrine upon which the claim is based and any pertinent litigation creating or affecting the claim;
(l) If a pre-existing use or uses described, an indication whether problems of water levels and supply or problems or declining quality have been encountered in the past;
(m) The user's plan for future development of his water use or uses and related activities.
4-10-162 Interim Permits.
(a) A description of the Use and Application for Permit which is made with respect to a use existing previous to the effective date of this Chapter shall, until a permit is issued or denied, serve as an interim permit authorizing the use of a reasonable quantity of water for the uses described and actually made while the application is pending. Additional uses planned but not commenced prior to the effective date of this Chapter may be reasonably made under a Description of Use and Application for Permit on an interim basis until a permit covering existing and new uses is issued or until any other action is taken to limit them under this Chapter.
(b) A description of Use and Application for Permit made with respect to a domestic use shall, unless the Water Committee in its discretion provided otherwise, operate as a final permit with respect to domestic uses actually necessary and made.
Each Description of Use and application for Permit shall be accompanied by a $5.00 filing fee. Provided, the Water Committee may waive payment of such fee in cases of financial hardship.
4-10-164 Public Notice of Descriptions of Use and Applications for Permits Initial Notice.
As soon as possible and no more than 180 days after the effective date of this Chapter, the Water Committee shall divide the Colville Indian Reservation into hydrologic basins or areas in which water uses are to some degree interrelated and prepare;
(a) A map of the Reservation showing such basins or areas;
(b) A listing for each basin or area of each use described and permit applied for which listing shall include names and addresses of applications, descriptions of water sources, quantities applied for points of diversion or withdrawal, methods of diversion or withdrawal, and a description of the uses to be made;
(c) A statement that the application described in the listing have applied for permits under the Water Use and Permitting Chapter of the Colville Law and Order Code and that any persons claiming that their rights may be adversely affected by the issuance of such permits may object to their issuance in accordance with the provisions for objection, notice and hearing provided elsewhere in this Chapter;
(d) A brief description of the objection, notice and hearing provisions of this Chapter and information which will assist the objecting parties in procuring the necessary forms and commencing an objection;
(e) A statement that any person may comment on the issuance of any permit, orally or in writing;
(f) A brief description of the public comment and investigation sections of this Subchapter.
The map listings, statements and descriptions prepared under the preceding paragraphs shall forthwith be published, posted and mailed in the same manner as provided in 4-10-32, herein, for "Notice of Enactment and Effect," except that maps and descriptions of objection procedures may be omitted if deemed impractical, except that newspaper publication may be limited to local papers, and except that listings need to be published and distributed only in the hydrologic basins or area affected by proposed or existing uses.
4-10-165 Public Notice of Descriptions of Use and Applications for Permits - Continuing Operations
When additional Descriptions of Use and Applications for Permits are received during the course of administration of this Chapter, the Water Committee, shall in conformance with the preceding section,
(a) Include in the listing provided for in 4-10-164(a) and (b), the necessary information concerning the new use or action;
(b) Prepare a statement that one or more new Descriptions of Use and Applications for Permits have been made and objections may be made to them in accordance with 4-10-164(c);
(c) Prepare the Description and statements provided in 4-10-164(d), (e), (f).
(d) The revised listing, statements and descriptions provided for in the preceding paragraphs shall forthwith be published, posted and mailed in the affected area in the same manner as provided for in 4-10-164(e), in order to assure adequate notice and an opportunity for hearing to persons who will be affected by the proposed uses or actions.
4-10-166 Objections Affecting Description of Use and Applications for Permits.
Any person or entity whose interests are or may be affected by a water use described and applied for may within 30 days from the publishing, posting, and mailing of notice that such use has been applied for file a formal objection to the issuance of the permit applied for.
4-10-167 Form and Contents of Objections
(a) Objections may be on forms prepared and made available by the Water Administrator and shall included the name and mailing address of the party objecting the name of the applicant whose application is objected to a description of the water use objected to a short and plain statement of reasons why a permit should not be issued or should issue in a form different from that applied for and any suggested conditions or other provisions which should be included in any permit granted.
(b) Oral objections may be made to the Water Administrator or his designee when either determines in his discretion that the circumstances permit an oral objection. Such oral objections shall be reduced to writing on the proper forms by the Water Administrator or his designee.
4-10-168 Reply by Applicant
Any applicant for a permit whose use is objected to may reply in writing or orally in the same manner as provided herein for objections.
4-10-169 Hearings Regarding Issuance of Permits
Any applicant directly affected or any party objecting in accordance with this Subchapter may request and obtain as a matter of right, a hearing concerning such objection. In addition, the Water Administrator or the Water Committee may schedule a hearing concerning the issuance of a permit or permits on their own motion whenever they determine that such hearings are needed. Provided, that whenever possible hearings concerning proposed or existing uses in a particular basin or area shall be consolidated to promote efficiency, minimize expense or hardship, and prevent duplication. Unless otherwise provided in this Subchapter, notice of such hearings shall be in the form as provided in the Subchapter on General Hearing Provisions under this Chapter, and shall be given to: The applicants whose uses are objected to the objecting parties, other persons designated by the objecting parties and applicants.
4-10-170 Public Comment
In addition to objections any person or entity may comment orally or in written upon the proposed issuance of any permit under this Chapter.
4-10-171 Investigation and Review of Permit Issuance
In addition to gathering information from the objections, comments and hearings provided above, the Water Administrator or the Water Committee may make any reasonable investigation of the facts and circumstances surrounding the permit application, may solicit comments and information from the public and from appropriate governmental agencies, and may otherwise gather information which will assist in issuing or denying a permit in accordance with the provisions of this Subchapter.
4-10-172 Issuance or Denial of Permits
As soon as possible after objections and hearings and after a reasonable period for public comment shall have passed, as provided above, and not more than 90 days after the filing of a Description of Use and Application for Permit, the Water Committee shall review the comments and information gathered with respect to a specific application and then deny a permit or issue a permit in the form provided for in the Subchapter on Water Permits under this Chapter dealing with the form and effect of permits
Water permits issued in accordance with this Chapter shall be on a form standardized by the Water Committee with any necessary assistance from the Water Administrator and his staff.
4-10-201 Information Contained.
Each permit shall include:
(a) The name and mailing address of the permittee;
(b) The name of if available or a description of the source or sources from which water is or will be diverted or withdrawn;
(c) The quantity of water which may be used during each month of the year;
(d) The legal description if such is readily available or other description reasonably describing the point or points of diversion or withdrawal;
(e) A description of the method or methods of diversion or withdrawal;
(f) The purpose or purposes for which water is or will be used;
(g) A description of how water may be applied or consumed, including acreage and crop if the water is for irrigation and the kind and number of stock if water is for stockwatering;
(h) The approximate date upon which the use (or uses) permitted has been or will be commenced.
(i) In addition, the water permit may contain such other information as is deemed necessary and appropriate.
Each water permit issued pursuant to this Chapter shall contain whatever conditions are necessary to insure adequate quality and quantities of water to otherwise further the purposes, policies and guidelines contained within this Chapter, and to assist in the effective administration of this Chapter. These may include among other things conditions concerning.
(a) The source from which water may be withdrawn;
(b) The quantity of water which may be withdrawn during any particular time;
(c) The point or points of diversion or withdrawal;
(d) The method or methods of diversion or withdrawal;
(e) The purposes for which water may be used;
(f) The method of Application;
(g) The location and purpose of application, including acreage for crops and number of stock for stock watering;
(h) The quantity and quality of return flow;
(i) The time period in which water may be used;
(j) Schedules for withdrawal or diversion, including optional rotation schedules;
(k) Provisions for surface or ground water storage of surplus flows;
(l) Provisions for increasing the efficiency of diversion or withdrawal and application;
(m) Provisions for maintaining minimal levels for fish, wildlife, recreational and aesthetic values;
(n) Provisions for insuring minimum pumping and diversion levels with respect both to surface and underground water;
(o) Provisions designed to maintain head and pressure in surface and underground water;
(p) Provisions designed to prevent or reduce obstruction or surface and underground water;
(q) Provisions designed to prevent or reduce obstruction of fish runs;
(r) Provisions designed to minimize pollution and thermal degradation;
(s) Provisions designed to insure optimum recharge of aquifers;
(t) Provisions designed to prevent or reduce loss from losing streams and aquifers;
(u) Provisions designed to define the limit interbasin transfers from shifting aquifer boundaries;
(v) Provisions for some degree of overdraft from aquifers when short term recharge is not available or appropriate;
(w) Provisions designed to prevent or reduce interference between competing users or water sources whether above or below ground;
(x) Provisions to insure long term development and prevent untimely quantifications;
(y) Penalties for misuse;
(z) Provisions to prevent interference with Tribal administration of water;
(aa) Other provisions necessary to insure conformity with this Chapter and actions taken hereunder.
4-10-203 Entry on Land.
No person should be authorized to use or otherwise take any action affecting the waters administered under this Chapter unless he shall consent to reasonable entry upon his land by Tribal officers engaged in the administration of this Chapter. Every permit issued under this Chapter shall contain the condition that no use of other action affecting the waters in question may be made unless the applicant comments to such reasonable entry upon his land.
A water permit issued under this Chapter constitutes nothing more than Tribal permission to use the waters of the Colville Indian Reservation, subject to the terms and conditions of the permit, to this Code, and to actions taken pursuant to this Code. No water permit issued hereunder shall be construed as creating or recognizing any right ripen into any interest other then such limited permission.
(a) Unless otherwise indicated, water permits issued under this Chapter are revocable in accordance with the policies, purposes, guidelines and procedures established in this Chapter.
(b) However, the Water Committee may, at its option or upon application, propose for consideration by the full Colville Business Council the granting of permits for specific periods of time, permits revocable or terminable only upon stated conditions, and other forms of permits providing varying degrees of permanence. Such permits may be conditioned upon payment or consideration and contain other Contractual terms.
Water permits are modifiable in accordance with the procedures provided in this Chapter.
Determination of Availability and Need.
4-10-240 When Proceeding Available
The purpose of proceeding to determine availability of and need for water under this Subchapter should be: to evaluate existing and future needs dependent upon a particular supply, to compute with reasonable certainty the characteristics of a particular supply, including quantity, surface and underground levels, rates and directions of flow, rates of recharge, out-of-basin sources, pollution, thermal degradation, and other characteristics, at particular locations and times; to explore various methods for increasing supply such as storage, increased efficiency, alternatives to present uses, alternatives to activities presently requiring the consumption of water; to assist in land use planning in accordance with be policies and actions of the Colville Confederated Tribes; and to make available to various Tribal and other agencies and to members of the public information concerning the water in question.
4-10-242 Notice of Proceeding
(a) Whenever a proceeding is initiated under 4-10-240 of this Subchapter the Water Committee shall provide notice of each proceeding in the same manner as provided in 4-10-321 to all parties who are using or will use or otherwise affect or rely upon the water supply in question, or who it appears will otherwise be directly affected by such proceeding.
(b) Such notice shall state in plain and simple language the reason the proceeding was initiated, the nature of proceeding, the geographic area covered by the proceeding, and as nearly as may be determined the possible affects of such a proceeding on individual water uses.
(c)The Water Committee shall make every reasonable effort to ensure that all persons or entities whose interests are or will be affected by the proceedings have reasonable notice of the nature, scope and possible affects of the proceedings and reasonable opportunity to prepare for and participate therein.
4-10-243 Order to Water Administrator
As soon as the Water Committee determines that a proceeding shall be initiated under this Subchapter it shall define as accurately as possible the area covered by the proceeding, and order the Water Administrator to commence an investigation as provided herein.
4-10-244 Water Administrator - Information Gathering
Upon receipt of such order the Water Administrator shall initiate an investigation to gather and evaluate all available and pertinent data from whatever sources concerning the water supply and needs for water in question, to formulate proposals concerning the use of the water in question and to provide other information, alternatives, and recommendations for the assistance of the Water Committee. Such information, alternatives, and recommendations shall be contained in the report of the Water Administrator provided in 4-10-245.
4-10-245 Water Administrator's Report
Upon completion of the investigation provided in 4-10-244, the Water Administrator shall transmit to the Water Committee his report concerning the availability of and need for water in the particular area to which the proceeding applies. The report may include, in addition to other pertinent information and recommendation, the following;
(a) A geographic and geologic description of the area studied, setting out as precisely as possible the boundaries of the area;
(b) A general description of the water supply in that area, from all sources;
(c) A description of the various characteristics of the supply which are relevant to present and proposed uses and other actions;
(d) A computation of the supply available at particular times and places.
(e) A description of present and proposed uses of and other actions affecting the water in questions;
(f) A description and evaluation of the need for each such present or proposed use or other action;
(g) A description of possible methods for increasing available supply;
(h) A description of economic and technical methods which may be implemented to increase the efficiency of use;
(i) Alternatives for present uses which will minimize the impacts described in 4-10-130;
(j) Amounts of water within the particular supply which shall be subject to a reserve as provided in 4-10-63;
(k) Proposals for assessing varying amounts of water as provided in 4-10-63;
4-10-246 Proposed Determination of Availability and Need
As soon as possible and no more than 30 days after receipt of the Water Administrator's report, the Water Committee shall cause to be prepared a proposed Determination of Availability and Need in accordance with the pertinent provisions of this Subchapter.
4-10-247 Determination of Availability and Need - Contents
In addition to other pertinent provisions, a Determination of Availability and Need may include the following, either or recommendations or mandatory provisions;
(a) A description and map of the affected areas;
(b) A description of the water supply in the affected area, including a description of the various characteristics of the supply which are especially pertinent to present and proposed water uses within that area;
(c) A description of the various present and future needs for using or affecting the water supply in the area;
(d) A list of priorities to be observed within the affected area;
(e) A list of storage methods which are or may be proposed and implemented;
(f) A description of methods for increasing efficiency;
(g) A description of possible inter basin transfers;
(h) Other information and recommendations or requirements reasonably calculated to inform the affected parties concerning the future management of the water in question.
4-10-248 Notice of Hearing
As soon as possible, and not more than 15 days after the drafting of a proposed Determination of Availability and Need, the Water Committee shall provide notice, in the same manner as provided in 4-10-242, of a public hearing at which interested persons may comment concerning the proposed Determination of Availability and Need. Included in the notice shall be a description and map of the affected area, a description of the proceeding to date and a clear statement pointing out that copies of the proposed Determination of Availability and Need shall be reasonably available to interested persons. The notice shall state that a hearing shall be held at a particular time and place not less than 30 nor more than 60 days after the date notice is completed.
A hearing shall be had with the respect to every proposed, Determination of Availability and Need. Whenever possible such hearing shall be had in the affected area, at an hour which is reasonably convenient. At such hearings, the Water Committee or its designate shall provide a brief oral statement of the purposes of the hearing and description of the proceeding to date, including the proposed Determination. At least one member of the Water Committee shall be present and shall preside over the hearing. After the presentation is made by the Water Committee or its designee, public comment shall be allowed. Public Comment should be limited by reasonable rules adopted by the Water Committee to insure an opportunity for full comment. Hearings may be continued to such times and places as are deemed appropriate upon adequate notice.
4-10-250 Final Determination of Availability and Need
As soon as possible, and no more than 30 days after the public hearing provided for in 4-10-249, the Water Committee shall cause to be prepared a final Determination of Availability and Need. Notice of this final Determination shall be made in the same manner as provided in 4-10-242 and shall indicate that copies of the Determination are reasonably available for public use.
4-10-251 Subsequent Actions
Upon completion of the above proceeding, the Water Committee shall make reasonably available to parties requesting the same copies of the Determination of Availability and Need made under the provisions of this Subchapter; shall grant, revoke, deny or modify permits in accordance with such Determination; shall enter appropriate orders and take other actions authorized by this Chapter to prevent overuse and pollution in accordance with such Determination; and shall take whatever other actions are necessary and authorized by this Chapter to assist in the implementation of the Determination and of the policies set out in this Chapter.
There shall be an appeal from the final Determination of the Availability and Need in the same manner as provided for in the Subchapter on Judicial Review under this Chapter.
Transfer and Loss of Rights
4-10-280 Transfer, Assignment and Creation of Security Interest
(a) Permits issued under this Chapter shall not be subject to transfer, assignment, or creation of any security interest, without the express written permissions of the Water Committee. Application for transfer, assignment, or creation of a security interest shall be made on forms prepared and made available by the Water Committee. Such forms shall be designed to solicit information concerning any substantial changes which will or may occur as a result of the transfer, assignment or creation of a security interest. Every attempt should be made to conform with the purpose of the Subchapter on Applications for Permits under this Chapter, dealing with Description of Use and Application for permits.
(b) Provided, that the parties involved in such transfers, assignments or creations of security interests may, when the circumstances warrant, apply directly to the Water Committee for informal authorization for such transfers, assignments, or creations of security interests. When such application for informal authorizations are received by the Water Committee, the Water Committee may submit the same to the Water Administrator's Office for recommendation and may grant informal approval when the circumstances are such that a formal application is impractical or otherwise unwarranted.
4-10-281 Exchange of Claims for Permits Under this Chapter
(a) Any person claiming any right in or to the waters of the Colville Indian Reservation may relinquish such claim to the Colville Confederated Tribes in favor of a water permit issued under this Chapter, and the Water Committee or its designee is empowered to undertake all negotiations and other actions necessary to execute such an exchange.
Provided, that nothing in this section shall be construed as recognizing or validating any claim to the use of any of the waters of the Colville Indian Reservation other than the right created under this Chapter.
4-10-282 Voluntary Relinquishment of Claims or Rights
Any holder or claimant of any right in or to the waters of the Colville Indian Reservation may voluntarily relinquish all or a portion of such right to the Colville Confederated Tribes by any affirmative action indicating his intent to relinquish.
4-10-283 Loss by Nonuse
Any right to use or otherwise affect in any way the waters of the Colville Indian Reservation, regardless of its origin, shall become void and revert, to the extent of the abandonment or nonuse, to the Colville Confederated Tribes when the holder of such right wholly or partially abandons the same, or voluntarily fails, without sufficient cause, to use all or a portion of the water available under such right for a period of five consecutive years. This section shall be retroactive.
"Sufficient cause" shall include:
(a) Drought or any other unavailability of water;
(b) Active services in the armed forces of the United States during military crisis;
(c) Nonvoluntary service in the armed forces of the United States;
(d) The operation of legal proceedings;
(e) The application of any laws restricting water use;
(f) Incarceration in a penal institution;
(g) Confinement in a mental institution, whether voluntary or not;
(h) Incompetence by reason of age or mental incapacity;
(i) Provision for future use as provided in this Chapter;
(j) Other causes of nonuse beyond the control of the holder or holders of the right claimed.
Before such water rights may be deemed lost by nonuse or abandonment, the Water Administrator or his designee shall serve notice on the holders of such rights to appear at a hearing to be held before the Water Committee not less than 30 days after the mailing or personal services of such notice and show cause why their rights should not be deemed void. Such notice and hearing shall be in the manner provided for in the Subchapter on General Hearing Provisions under this Chapter governing notice and hearing.
4-10-284 Loss by Adverse Possession, Prescription, Estoppel, or Acquiescence
No rights to use or otherwise affect the quantity, level, flow, pressure, quality, or temperature of water may be acquired by adverse possession, prescription, estoppel or acquiescence.
4-10-285 Outside Proceedings
No right granted under this Chapter may be reduced or taken or otherwise affected in any procedure or determination or adjudication except as provided in this Chapter.
General Hearing Provisions
Whenever not otherwise provided for in this Chapter hearings shall be held in accordance with the provisions of this Subchapter
All parties who will or may be directly affected by a proposed action shall be given notice by registered mail, return receipt requested, of any hearing held under this Subchapter. In addition, notice of hearing shall be published in one paper having general circulation in the affected are and notice of hearing shall be posted in prominent places in the affected area.
EVERY ATTEMPT SHALL BE MADE TO GIVE EACH PARTY WHO WILL OR MAY BE DIRECTLY AFFECTED BY ANY ACTION ACTUAL NOTICE OF THAT ACTION AND FAIR AND ADEQUATE OPPORTUNITY TO BE HEARD.
4-10-322 Time and Place of Hearing
Whenever possible hearings shall be held in the affected area, at a time and place which is convenient for a major portion of the parties affected.
Continuance shall be freely granted when the ends of justice so require and in order to assure adequate notice and opportunity to be heard.
4-10-324 Presiding Officer
At least one member of the Water Committee shall preside over hearings provided in this Subchapter, except that the Water Committee may designate a hearing officer in lieu of a Committee member.
4-10-325 Forms of Evidence
Evidence may be submitted in any practical form including oral testimony, written evidence, and descriptive evidence. The ordinary rules of evidence shall not apply but evidence which is irrelevant, cumulative, unduly prejudicial, or would otherwise be unfairly admitted, may be excluded or admitted only under special conditions or stipulations.
4-10-326 Consolidation of Hearings
Whenever possible hearings concerning proposed or existing actions, in a particular basin or area shall be consolidated to prompt efficiency, minimize expense or hardship, and prevent duplication.
Whenever possible, hearing shall be recorded by mechanical means, provided, that any person may provide at his own expense for stenographic record.
Whenever a decision is required in accordance with the provisions of this Chapter following a public hearing, the hearing officer shall cause such decision to be published and served upon the parties in the same manner as provided in 4-10-321 covering notice of hearings.
Violations, Enforcement and Civil Penalties
4-10-360 Civil Penalties
Any person or government agency who diverts and uses or withdraws any waters of the reservation without first having obtained a permit from the water administrator, or any person or government agency who fails to follow or carry out any of the requirements or conditions as are made part of such permit, or otherwise violates the provisions of this Chapter is subject to a civil penalty of up to $500 per day for each such violation.
4-10-361 Notice of Violation
If the Water Administer determines that a person has violated a provision of this Chapter or any conditions of an approved permit, he shall immediately issue a notice in writing describing the nature of the violation (including the amount of any civil penalty imposed) and serve the notice either by certified mail or personally on the alleged violator.
Any person incurring any penalty under this Subchapter may appeal the same to the Water Committee as set forth in the Subchapter on Appeals from Water Administrator Actions under this Chapter. An appeal shall be filed within 20 days after receipt of a notice imposing any penalty. The penalty imposed shall become due and payable 20 days after receipt of the notice imposing the penalty unless an appeal is filed. Whenever an appeal of any penalty incurred under this Subchapter is filed, the penalty shall become due and payable only upon completion of all review proceedings and the issuance of a final order confirming the penalty in whole or in part.
4-10-363 Public Nuisance
If a civil penalty is imposed pursuant to the provisions of this Subchapter and the person incurring the penalty continues to operate a diversion or other such works or projects utilizing the waters of the reservation without fully complying with the provisions of this Chapter, the diversion, its works or projects are hereby declared a public nuisance and shall be subject to abatement as such.
4-10-364 Action to Collect Penalty
If the amount of any penalty is not paid within thirty days after it becomes due and payable, the Office of the Reservation Attorney, upon request of the Director of the Department of Environmental Trust shall bring an action in the name of the Confederated Tribes of the Colville Reservation in the Colville Tribal Court to recover such penalty
4-10-365 Liability for Damages
Any person or governmental agency operating a diversion or using waters of the reservation without a permit as required by this Chapter or in violation of any term of any permit issued pursuant to this Chapter shall be liable in a civil action brought by the Colville Tribes in the Colville Tribal Court for any damage the Tribes may incur because of the illegal action, including any costs of monitoring, investigation, laboratory and any other fees which shall include attorneys fees.
Appeals from Water Administrator Actions
An appeal from any final order of the Water Administrator may be taken to the Water Committee by any person aggrieved. An appeal is taken by filing with the Water Administrator and the Water Committee a written notice of appeal specifying the grounds therefore. A notice of appeal shall be considered filed with the Administrator and Water Committee when it is delivered to the Environmental Trust Department at which time the date and time of filing shall be entered on the notice by the Department staff.
4-10-401 Time For Filing
An appeal must be taken within 20 days of the date of the decision or order appealed from.
4-10-402 Transmittal of Record
Whenever an appeal is filed the Administrator shall transmit all the papers constituting the records relating to the action appealed from to the Water Committee.
An appeal stays all actions by the Water Administrator seeking enforcement of or compliance with the order or decision appealed from, unless the Administrator certifies to the Water Committee that (because of the facts stated in the certificate) a stay would, in his opinion, cause imminent peril to life or property. In that case, the proceeding shall not be stayed except by order of the Water Committee or the Colville Tribal Court, issued upon application of the party seeking the stay and due cause shown, after notice to the Administrator.
The Water Committee shall make its decision within 30 days after it receives written notice of a timely administrative appeal provided that the Committee may reasonably extend the time for a decision with the consent of the parties to the appeal or upon a finding of fact that such an extension is necessary for proper consideration of the appeal.
Any appeal filed pursuant to this section shall follow the procedures for contested cases under sections 2-4-12 through 2-4-17 of Chapter 2-4, the Colville Administrative Procedure Act.
Every decision or order of the Water Administrator that is reviewable by the Water Committee under section 4-10-400 shall not be considered a final order or decision subject to judicial review. Exhaustion of all available administrative remedies, including any administrative appellate review, is a jurisdictional requirement to judicial review.
4-10-440 Decisions Subject to Review
Every decision of the Water Committee granting, denying, modifying or revoking a water permit under the Subchapter on Water Permits under this Chapter; making a final determination of rights or availability of need under the Subchapter on Determination of Availability and Need under this Chapter and, any final order, decision or action of the Committee on any appeal taken from any action by the Water Administrator under section 4-10-400 shall be subject to review by the Colville Tribal Court upon the filing of a timely petition for review pursuant to the procedure set forth in section 2-4-19 of Chapter 2-4, the Colville Administrative Procedure Act.
4-10-441 Contents of Petition
The petition for review shall briefly set forth that portion of the decision appealed from, the statutory reference(s) relied upon to support the relief requested and which standard of review set forth in CTC 2-4-19(7) provides the basis for the petition.
4-10-470 Waste of Water Prohibited.
No water that has been withdrawn, diverted or otherwise taken pursuant to a valid permit or otherwise shall be wasted. The withdrawal of reasonable quantities of water in connection with construction, development, testing or repair of diversion and withdrawal works shall not be construed as waste. In the event of inadvertent loss of water owing to defects in equipment for diversion and withdrawals, such shall not be construed a waste if reasonable diligence is shown by the permittee in effecting necessary repair.
4-10-471 Unauthorized Actions Affecting Waters Prohibited.
Whenever any use or other action affecting the waters of the Colville Indian Reservation is required by this Chapter to be authorized under the provision of this Chapter, it shall be an offense punishable by a fine of not more than $500 and/or a sentence of not more than six months in jail, to knowingly make such use or take such other action without the authorization required.
4-10-472 Obstruction of Tribal Officers.
The willful obstruction of or interference with Tribal Officers performing their lawful duties under this Chapter shall be an offense punishable by a fine of not more than $500 and/or a sentence of not more than six months in jail.
4-10-473 Additional Penalties.
In addition to the penalties imposed under 4-10-471 and 4-10-472 violations of this Subchapter shall subject the person(s) or entity(ies) responsible to forfeiture of all rights to water administered under this Chapter.
4-10-474 Overstatement of Use.
Any person or entity who shall willingly, when providing information required by this Chapter, with respect to Descriptions of Use and Applications for Permits or otherwise, misstate material facts, shall be guilty of an offense punishable by forfeiture of all rights hereunder, and/or by fine of note more than $500.
If any provision of this Chapter or the application thereof to any person or circumstance is held invalid, this Chapter can be given effect without the invalid provision or application; and to this end the provisions of this Chapter are declared to be severable.
This Chapter shall be liberally construed to effectuate its purposes.
4-10-502 Rules and Regulations.
The Water Committee is authorized and directed to adopt such rules and regulations as it deems necessary to implement the objectives and purposes of this Chapter. Such rules and regulations shall not be valid until they have been submitted to and approved by the Business Council of the Colville Confederated Tribes.
4-10-503 Review of Authority.
The Water Committee and the Water Administrator shall, from time to time, review the authority granted to them under this Chapter and proposed amendments and additions thereto to the Colville Business Council in order to improve administration under this Chapter.
4-10-504 Optional Charge.
A reasonable charge may be imposed at the option of the Water Committee for the use of the water administered under this Chapter. Provided, no charge shall be imposed upon domestic uses as defined herein. And provided further, enrolled Tribal members shall have their reasonable share in waters owned by the Tribe credited against such charges.
4-10-505 Extension of Time Limit.
The time limits provided in various places of this Chapter may be extended, for good cause shown, by the agency before whom the proceeding is pending when the ends of justice so require.
Parties appearing at hearings and other proceedings provided for in this Chapter may be represented by attorneys if they desire.
Participation by the Department of the Interior
4-10-540 Enforcement Assistance.
The Department of Interior shall, through its appropriate agencies, provide reasonable technical, financial, manpower and other assistance to the Colville Confederated Tribes to assist in the administration and enforcement of this Chapter and permits issued hereunder.
4-10-541 Optional Permit Approval.
The Water Committee may, at its option, submit any permit to the Superintendent of the Colville Indian Agency in order to obtain Departmental approval in accordance with appropriate Departmental regulations.